IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DOIN SHERIDAN WINTERS, DEFENDANT AND APPELLANT.
Contra Costa County Super. Ct. No. 05-0911214
The opinion of the court was delivered by: Kline, P.J.
P. v. Winters CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Doin Sheridan Winters appeals from a judgment and sentence entered on his plea of no contest to two counts of failure to register in violation of the Sex Offender Registration Act. (Pen. Code, §§ 290, subd. (a)(1)(D), 290.012, subd. (a).)*fn1 His court-appointed attorney has filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
As our review discloses no arguable issue, we shall affirm the judgment and sentence.
On July 29, 2009, appellant was charged with two counts of failing to annually register, as required by the provisions of the Penal Code just cited. On January 11, 2010, appellant pled no contest to these charges and the court subsequently sentenced him to 365 days in county jail with credit for 83 days actually served, and two years of supervised probation. Appellant was permitted to serve the unserved jail time on electronic home detention under supervision of the county Custody Alternative Bureau. The court imposed a $400 restitution fine, which it suspended; ordered him to pay a court security fee of $30 for each conviction; a court administration fee of $60; probation costs not exceeding $50 per month; and a $350 attorney fee. Appellant was also required to submit to drug and alcohol testing and to pay related costs not to exceed $10.
On January 21, 2010, appellant requested a certificate of probable cause, which was granted on March 10. On March 12, 2010, appellant filed a timely notice of appeal.
Appellant entered his plea after signing a written waiver of rights. That document and the transcript of the hearing at which appellant entered his plea establishes that he understood the nature of both the charges against him and the constitutional rights he was giving up. We are satisfied that his waiver of those rights and his subsequent admissions were made freely, knowingly and voluntarily. Appellant was at all times represented by competent counsel who protected his rights and interests. The sentence imposed is authorized by law.
The only other issue presented by the record warranting our attention is that raised by appellant in his request for the certificate of probable cause he was granted.
Section 290 provides that persons convicted of specified offenses, including those of which appellant was convicted, shall be required to register with the chief of police or other specified law enforcement officers in the jurisdictions in which they reside "within five working days of coming into, or changing his or her residence . . . ." (§ 290, subd. (a)(1)(D).) Section 290.012, subdivision (a), which relates to transient persons, provides that "[b]eginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subdivision (b) of Section 290. At the annual update, the person shall provide current information as required on the Department of Justice annual update form, including the information described in paragraphs (1) to (3), inclusive of subdivision (a) of Section 290.015. The registering agency shall give the registrant a copy of the registration requirements from the Department of Justice form."
In the request for a certificate of probable cause she prepared and submitted to the court in appellant's behalf, defense counsel stated: "Mr. Winters was convicted of two counts of failing to annually update his registration, though he had not relocated. Mr. Winters believes that this retroactive application of the law is a violation of his Constitutional rights. [¶] There are two reasons [the] court should grant a certificate of probable cause in this case. First, defense counsel has not found a case directly on point regarding the retroactivity on annual registration when a person was only required to register upon relocation. In addition, federal courts have recently ruled that Proposition 83 (commonly known as 'Jessica's Law'), which was enacted in November 2006, cannot apply retroactively. This law added GPS monitoring and residency restrictions for Penal Code section 290 registrants. Mr. Winters argues that this recent development calls into question earlier rulings regarding the retroactive application of Penal Code section 290 cha[r]ges. [¶] For the above reasons, Mr. Winters respectfully requests a Certificate of Probable Cause in order to challenge the constitutionality of the charges."
The most significant provisions of Proposition 83, which was passed by the voters on November 7, 2006 (entitled The Sexual Predator Punishment and Control Act (SPPCA) but commonly referred to as "Jessica's Law") prohibit sex offenders who are required to register pursuant to section 290 from residing "within 2000 feet of any public or private school, or park where children regularly gather" (§ 3003.5, subd. (b)) and mandate that every inmate "convicted for any felony violation of a 'registerable sex offense' . . . and who is committed to prison and released on parole . . . shall be monitored by a global positioning system for the term of his or her parole . . . ." (§ 3000.07, subd. (a).)
The federal case appellant's counsel referred to is apparently Doe v. Schwarzenegger (E.D.Cal. 2007) 476 F.Supp.2d 1178, which was brought by registered sex offenders to challenge the constitutionality of the SPPCA. The SPPCA is silent on the issue of retroactivity, and the court found it unclear from extrinsic sources whether the voters intended to make it retroactive. (Id. at p. 1182, citing Tapia v. Superior Court (1991) 53 Cal.3d 282, 287; see also Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207 [" 'statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent' "]; and section 3 of the Penal Code ["No part of ["this Code] is retroactive, unless expressly so declared"]. Relying on its obligation "to give laws only prospective effect unless there is clear evidence to the contrary" (Doe v. Schwarzenegger, at p. 1183), the federal district court found the SPPCA only applicable prospectively.
As indicated earlier, the provision of the SPPCA prohibiting registerable sex offenders from residing "within 2000 feet of any public or private school, or park where children regularly gather," is set forth in subdivision (b) of section 3003.5. The application of that statute was challenged in In re E.J. (2010) 47 Cal.4th 1258. The petitioners, four registerable sex offenders, maintained that the residency restrictions set forth in this provision of the SPPCA were being impermissibly applied retroactively to them. More specifically, they argued "that because they committed the underlying sex offenses that gave rise to the requirement that they register for life pursuant to section 290 well before the voters enacted section 3005.5[, subdivision] (b), the new law retroactively attaches new legal consequences to their prior convictions. Insofar as Jessica's Law fails to explicitly state that any of its provisions are retroactive, petitioners contend that application of the new residency restrictions to them contravenes section 3 of the Penal Code, which provides, as a general matter, that '[n]o part of [the Penal Code] is retroactive, unless expressly so declared.' " (In re E.J., at pp. 1271-1172.)*fn2
The foregoing claim appears to be the one appellant believed had been validated by a judicial opinion defense counsel was unable to identify and find, as she stated in the request for a certificate of probable cause.
However, the claim was in In re E.J., rejected by the Supreme Court, not validated. As the court stated, "[u]nder its plain language, subdivision (b) applies to 'any person for whom registration is required pursuant to Section 290.' (§ 3003.5[, subd.] (b).) A convicted sex offender who becomes subject to the registration requirement of section 290 must register 'for the rest of his or her life while residing in California, or while attending school or working in California . . . .' (§ 290, subd. (b).) Accordingly, under the plain language of section 3003.5[, subdivision] (b), any convicted sex offender already subject to the lifetime registration requirement who is released from custody on parole, whether it be after serving a term in custody for an initial sex offense conviction, a new sex offense conviction, or a new nonsex offense conviction, becomes subject to the new mandatory residency restrictions for the duration of his parole term. Should he take up residency in noncompliant housing after his release from custody, he will then be subject to parole revocation for a violation of section 3003.5[, subdivision] (b). It matters not, under a straightforward application of the language of the statute, whether the registered sex offender is being released on his current parole for a sex or nonsex offense. Since he is already subject to the lifetime registration requirement of section 290, that status, together with his act of moving into noncompliant housing upon his release from custody on parole after the effect date of Proposition 83, subjects him to the residency restrictions of section 3003.5[, subdivision] (b)." (In re E.J., supra, 47 Cal.4th at p. 1272.)
Unlike the plaintiffs in Doe v. Schwarzenegger, supra, 476 F.Supp.2d 1178, and the petitioners in In re E.J., supra, 47 Cal.4th 1258, appellant has not in this case been charged with a violation of section 3003.5, subdivision (b), or any other provision of the SPPCA. He entered his plea of no contest to violations of the Sex Offender Registration Act--i.e., sections 290, subdivision (a)(1)(D) and 290.012, subdivision (a)--on January 11, 2010, and the violations took place in 2009. The statutes he violated took effect on October 13, 2007. (Stats. 2007, ch. 579, §§ 8,13.)
The fact that the sex offenses that exposed appellant to the registration requirement occurred prior to enactment of section 290 does not trigger application of ex post facto principles. As several courts have pointed out, the registration requirement imposed by section 290 does not constitute punishment under the ex post facto clause (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9), since it neither alters the definition of any crime nor increases the punishment for criminal acts, the Legislature did not intend registration to constitute punishment, and the requirement is not so punitive in nature and effect that it must be deemed punishment. (People v. Allen (1999) 76 Cal.App.4th 999, 1003, cert. denied 531 U.S. 841; People v. Fioretti (1997) 54 Cal.App.4th 1209; Hatton v. Bonner (9th Cir. 2004) 356 F.3d 955.)
Finally, the only evidence in the record bearing upon appellant's understanding of the registration requirements applicable to him is the probation officer's report, which states that appellant acknowledged the need for him "to update his registration whenever he moved," and that "[p]olice records showed that he had previously acknowledged that he was required to register annually and that it was a lifetime obligation." At no time during the proceedings below did appellant contradict these (or any other) representations to the court by the probation officer.
For the foregoing reasons, our independent review discloses no arguable issue requiring further briefing.
The judgment and sentenced imposed are affirmed.